Canada may revisit gay marriage / But new leadership says issue is not among top priorities

Published 4:00 am, Wednesday, January 25, 2006

Canada's newly elected Conservative government has promised to revisit same-sex marriage less than a year after the country became just the third in the world to legalize such unions.

But it won't happen soon, and the effort may be hindered by the Conservative Party's narrow victory Monday, which will force compromise among the major parties.

And reopening the issue seems to contradict the sentiments of most Canadians. Prior to the election, a nationwide poll found that 66 percent felt the issue was settled. The number who said same-sex marriage would determine how they voted was "almost infinitesimal," said pollster Donna Dasko, senior vice president of the Environics Research Group.

A Conservative Party representative said same-sex marriage is not among the party's top five priorities, which are child care, health care, crime, government accountability and lowering taxes.

"We're putting things like same-sex marriage on the back burner to these five," said Melissa Cable, press officer for the party.

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The same-sex marriage law passed Parliament last summer by a 25-vote margin. While Conservatives won 26 additional seats in Monday's election -- for a total of 124 seats -- it is unclear whether they can muster a majority of Parliament to revisit the issue, said Laurie Arron, director of advocacy for Egale Canada, the country's national gay and lesbian rights organization.

The Liberal Party, which has ruled the past 12 years, came in second by winning 103 seats, followed by the Bloc Quebecois with 51, New Democratic Party with 29, and one independent. Stephen Harper, the leader of the Conservatives, will be the country's next prime minister.

Arron estimates that at least 149 of the 308 members of the new Parliament support same-sex marriage. Some who did not vote for the legislation have told him they oppose reopening the issue, he said.

"Basically, it's too close to call," said Arron, who previously believed the Conservatives would have more than enough votes on the issue. "I had a lot of surprises last night."

If Harper does reopen the issue, he has promised to safeguard marriages already performed. Canada does not keep statistics on same-sex marriages nationwide, but Egale estimates there have been 5,000 to 10,000, a fifth of them between United States citizens.

In 2005, 999 same-sex couples married in the province of British Columbia, and more than half of those married were United States citizens, according to the British Columbia Ministry of Health.

Harper avoided campaigning on same-sex marriage, discussing it only when he was asked by reporters. The Conservative Party's platform states the party will "hold a truly free vote on the definition of marriage in the next session of Parliament.

"If the resolution is passed, the government will introduce legislation to restore the traditional definition of marriage while respecting existing same-sex marriages," according to the Conservative platform.

It is unclear how that could happen. Courts across Canada consistently have ruled that denying same-sex couples the right to marry violates the nation's constitution, and any bill would face an immediate court challenge. And the country's Charter of Rights and Freedoms, similar to the U.S. Bill of Rights, prohibits discrimination based on sexual orientation.

To make any new action immune from the courts, constitutional experts say Harper would have to invoke Canada's wildly unpopular "notwithstanding clause."

That clause allows Parliament to pass a law notwithstanding the charter that would otherwise prohibit it. Even when such a law does pass, Parliament must revisit the issue in five years.

Harper said during the campaign that he would not have to use that clause because the country's Supreme Court would rule in his favor. But many disagree.

"No constitutional lawyer in the country -- OK, maybe one -- thinks this is plausible," said Lorraine Weinrib, an expert on Canada's constitutional law and professor at the University of Toronto. She and more than 100 other constitutional scholars signed a letter to Harper calling the effort "clearly unconstitutional."

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